Matthew T. Mangino: Death for drug dealers not so far-fetched

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Mar 16, 2018 at 8:54 AMMar 16, 2018 at 8:54 AM

President Donald Trump wants to impose the death penalty on drug dealers. Death for drug dealers is the focus of a brutal campaign by Philippines President Rodrigo Duterte whose “drug war” has, according to Human Rights Watch, resulted in more than 12,000 extrajudicial deaths.

I’m not sure that Trump wants armed militia cruising the streets, knocking-off reputed drug dealers, but is anyone ever really sure what President Trump has planned?

In a recent campaign speech in Pittsburgh, President Trump said, “These people are killing our kids and they’re killing our families, and we have to do something.” He went on to say, “I think it’s a discussion we have to start thinking about (the death penalty for drug dealers). I don’t know if we’re ready — I don’t know if this country’s ready for it.”

However, if Trump intends to pursue the death penalty for drug dealers through the criminal court system his idea may not be so far-fetched.

The death penalty has been exclusively for those convicted of first-degree murder since the death penalty was reinstated in 1976.

The Supreme Court cited evolving standards of decency to outlaw the death penalty for the rape of an adult in 1977. In 2008, the court found that there is a distinction between first-degree murder and nonhomicide crimes against individual persons, even child rape.

U.S. Supreme Court Justice Anthony Kennedy wrote in 2008, “As it relates to crimes against individuals, though, the death penalty should not be expanded to instances where the victim’s life was not taken.”

According to the Death Penalty Information Center, an anti-death penalty website, two states — Florida and Missouri — have the death penalty for drug dealers on their books. The federal government also has the death penalty for trafficking large quantities of drugs.

The Trump administration is studying a proposal that could allow prosecutors to seek the death penalty for drug dealers as a way to address the opioid crisis. Opioids killed nearly 64,000 people in 2016, and the crisis is straining local health and emergency services.

According to the Washington Post, people familiar with the discussions said that the president’s Domestic Policy Council and the Department of Justice are studying the possibility of making trafficking large quantities of fentanyl — a powerful synthetic opioid — a capital crime because even small amounts of the drug can be fatal. The Trump administration’s authority would be limited to federal law and the federal government has been squeamish about executions. There have been only three executions by the federal government in the last 55 years.

In 1972, the Supreme Court ruled that the death penalty laws in place were unconstitutional because there were no rational, objective standards for when the death penalty would be imposed.

Four years later, the Court found that Georgia’s amended death penalty statute was “judicious” and “careful.” The new statute provided for a bifurcated trial — one to determine guilt and one for sentencing. During the sentencing, or penalty phase, specific jury findings of “aggravating circumstances” were necessary to impose the death penalty. The Eighth Amendment violations disappeared, and the death penalty was once again constitutional.

How would the death penalty look for a nonhomicide offense?

Once a defendant is convicted of drug trafficking the jury would then move into the penalty phase of trial — juries must make death penalty decisions — or impose some other penalty provided by statute.

The whole idea of imposing the death penalty on drug dealers comes as interest in the death penalty wanes. There have been only 47 executions nationwide in the last three years. Support for the death penalty has fallen below 50 percent for the first time in the modern era of the death penalty.

Imposing the death penalty on drug dealers will be a stretch, but probably has a better chance of happening than the erection of a wall from the Pacific Ocean to the Gulf of Mexico.— Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book The Executioner’s Toll, 2010 was released by McFarland Publishing. You can reach him at www.mattmangino.com and follow him on Twitter @MatthewTMangino.

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